Herman Trend Alert: New Trends in Employment Law

Herman Trend Alerts are written by Joyce Gioia, a strategic business futurist, Certified Management Consultant, author, and professional speaker. Archived editions are posted at http://www.hermangroup.com/archive.html

In September, Littler Mendelson, the world’s largest employment law firm, released a fascinating white paper, titled "THE LITTLER TEN: Employment, Labor and Benefit Law Trends for Navigating the New Decade." This 78-page document provides a valuable overview for human resource and other corporate professionals. Moreover, it delivers an informed analysis and suggests best practices for organizations worldwide that want to be proactive about the future. Here we highlight a few of the most important shifts detailed.

First, "the digitization of work will redefine employment law." This shift will especially affect telecommuting and social media. Just recently, we saw in the U.S. a case in which an employee was fired for publicly criticizing her boss online. This type of challenge to corporate authority is likely to escalate.

Our second point Littler calls the "Brave New World of Employment Litigation." This development includes e-discovery, privatization of litigation through ADR (Alternative Dispute Resolution) and virtual trials. Not surprisingly, in the next decade mediation will continue to be a common way to resolve cases. Due to the interest in mediation in Europe, the U.S. will export its mediation practices and techniques. (Our forecast is that interest in South America and perhaps even Asia will follow suit.)

There will be an increasing emphasis on negotiation and dispute resolution skills in legal education, while employers will adopt more sophisticated internal dispute resolution mechanisms that will allow them to avoid using outside professionals. To avoid litigation, employers will greatly expand their wage and hour compliance and training programs.

Parties involved in trials may be linked electronically using the teleprescence-type systems already available and trials may be shown live on Internet feeds.

Labor organizing will intensify. Currently in the U.S., about 37.4 percent of the public sector labor force is unionized, as are 7.2 percent of private sector employees. Littler believes that "multi-national ‘super unions’ " will skyrocket. To avoid this situation, Littler recommends employers conduct labor audits to determine whether there are any areas in the organization that are more vulnerable to union organizing.

Littler foresees, as we do, that "a large permanent contingent workforce, a growing skill shortage, high structural unemployment and undocumented workers will force legislative, judicial and regulatory reform."